New Oklahoma Rules Bring E-Discovery Challenges Home

Davis, KirLee, THE JOURNAL RECORD

While on the road Friday, McAfee & Taft trial lawyer Jim Webb
tapped the modern convenience of e-mail to put together a Monday
meeting - and in doing so, demonstrated the legal profession's
increasing challenge with electronic discovery.

"In the past, this would have been done with one phone call," he
said. "It would have generated no documents. Now, when all is said
and done, there may be 100 e-mails and texts come from this, just to
schedule a meeting."

That demonstrates the growing complexity of e-discovery, where
every little text, blog or e-mail could come under scrutiny. And
that doesn't even begin to mine concerns over metadata in
electronically stored information (ESI), where even long-deleted or
background information may still reside in a document, awaiting a
sleuthing attorney's eye.

"When a discovery request is set out, all those communications
are all going to be in discovery requests, even though many times
they're of absolutely no value to either side," Webb said of his
meeting-planning efforts. "But they could be an example to know who
was involved in the meeting process, who decided not to come. Other
issues can go off of that."

New e-discovery rules signed into law this month by Gov. Brad
Henry brought Oklahoma procedures largely in line with existing
federal practices. When these changes take effect in November, some
analysts expect this to rattle attorneys and firms rarely exposed to
federal courts or still coming to grips with the vast extent of
electronic communications and commerce.

"There are a lot of additional issues to take into account when
you're talking about discovery in electronic information," said
Sarah Jane Gillett, who leads Hall Estill's new Electronic Discovery
Group. "It's an area where mistakes can potentially be made early on
that can threaten the outcome of a lawsuit."

By taking these rules to the state level, the change may heighten
demand for law firms or specialists able to help judges, attorneys
or companies filter through the increasing deluge of e-
documentation.

Hall Estill, for example, now offers a Records Retention and
Electronic Discovery Assessment Program under Gillett's practice
group.

"There's no doubt in my mind that just the proliferation of
electronic discovery has absolutely increased the cost of
litigation," said Webb. "You can ask any of my clients and they'll
probably tell you the same.

"For as long as I've been a lawyer, we've been asking for
electronic data, which was usually financial data. In the old days
this used to be usually backup tapes of a financial nature. Now, in
these days of e-mail and phones, just the amount of data that gets
exchanged is off the charts.

"There's a lot of things people say in electronic communications
that they never would have said in a written memo," said Webb.
"Instead of a single memo, there may be 1,000 e-mails going back and
forth. …

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